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The Brazilian right to be forgotten

Published Date
09/12/13 06:17 م

For some time there has been considerable international discussion about the so called "right to be forgotten" on the internet. The right for people to have removed, information about them, be it accurate or not, circulated on the internet has been the subject of increased debate.

Technical issues aside, Brazil is still dragging its feet passing even basic legislation regarding the protection of personal data, the issue regarding this right to be forgotten is beginning to grow in importance within the country. The issue was recently addressed by the 6ª Jornada de Direito Civil da Justiça Federal/2013, a Brazilian legal committee, which concluded that such a right would strengthen the protection of human dignity. The issue was analyzed in some depth and symbolically the STJ, the Brazilian Supreme Court for federal law infringements, took the position that this seems to be a trend in the country.

In any event, an analysis of this issue is far from simple, from the beginning we have faced a conflict between those that advocate the right to anonymity (regarding intimacy, private life and social rehabilitation) and those in favor of the unrestricted right to access information. On one hand it is desirable to protect the private lives of individuals on the other it is necessary to guarantee that information of unquestionable public interest is always freely accessible.

Thus, material and public facts, whose effects directly impact society need to remain accessible as they form part of the history of the nation. However every person should have guaranteed the right that their personal life and information is protected.

Photos from college days, controversial views expressed during adolescence and events of everyday private life that ordinarily would fade with the passing of time should be removed if the subject so desires.

The situation becomes more complicated when information circulating on the net finds its way into the news media, in publications, journals or in the comments or opinions of others. This is because, clearly, in any democracy, the freedom of the press, freedom of speech and expression are rights that, exercised responsibly, should be preserved. In the event that information is false, libelous or defamatory without doubt this must be withdrawn immediately or at least corrected where information is not false but exaggerated.

However, where uncomfortable but true facts in the public interest are published, criminal convictions for instance, then it is necessary to reflect upon whether it is appropriate to be able to impact people´s lives in this way ad infinitum.

Indeed on one side we have veracity of the facts, right to information, freedom of the press and thought. On the other, the damaging consequence of indefinitely maintaining information about individuals, and their families, despite their having perhaps paid for their wrongdoing as provided by the law (prison, other restrictions of liberty, payment of fines etc).

It seems that Brazilian legislation has already provided guidance to resolve this issue. In the field of criminal law, the criminal code and criminal procedure make clear that the individual has the absolute right to rehabilitation and social reintegration. (art.93 of the Brazilian Penal Code and art.748 of the Brazilian Criminal Procedural Code).

Those rehabilitated are afforded the right to confidentiality regarding individual records of prosecution and conviction. The criminal enforcement system must also provide conditions that allow for a more harmonious reintegration of offenders into society under Art.1 LEP, the Brazilian Sentencing Enforcement Code, the object being to reduce criminal reoffending.

Given that a fundamental principle of sentencing is ultimately to return those convicted to more productive lives in society, then in order to facilitate this, the right to forget previous wrongdoings should at least be understood.

Furthermore, Brazilian civil legislation also provides that the exercise of personal rights cannot be restricted (art. 11:12 - Civil Code), thus, in any situation, facts of the past, although true, can completely disappear from the future of a man or woman.

To conclude, although it is in the public interest that we have free access to certain types of information about people, it may often be more important that certain facts are overlooked, for the benefit of rescuing the dignity of individuals, who, left in peace can get on with their lives.

Renato Opice Blum -Lawyer, economist, professor and president of the IT Council of the Sao Paulo Federation of Commerce.

So, "RTBF" is one of the most interesting areas of privacy dialogue for me, because there seem to be such different perspectives on the issue depending on whether someone is coming from a civil law country or one with a common law/adversarial culture. Since I come from the latter and attended law school in the US, when I see a legal proposal like RTBF, as much as I might sympathize with the underlying goal, the first thing I always do, by training, is to imagine an unusual hypothetical situation and then imagine how a particularly clever attorney might manipulate such a right. So, I might think to myself, "What would happen if a person with a poor credit history invoked his RTBF to erase the record of his credit history, and then he continued to apply for loans, mortgages, etc.?" Or "What if a person with a history of criminal conviction for child sexual exploitation uses RTBF to have his record expunged and is then hired as a school bus driver or teacher of small children?" In an adversarial legal culture, we always assume for planning purposes that someone will find a way to manipulate and use legal rights in bad faith. This mental discipline doesn't seem to exist to the same degree amongst civil law-trained lawyers, to my experience, which I think is part of why we find ourselves talking past each other on issues like RTBF.

I am curious from your perspective what about the RTBF is both necessary and novel? We already have in most privacy laws the right to withdraw consent to processing. And we also, of course, have laws against defamation, where liability depends upon a finding that a fact revealed about a person is untrue and that the damages due the offending party will likely depend in large part on how widely this untrue information has been disseminated. That to me seems less legally problematic than a rule against disseminating information that is indisputably true, but just embarassing. So what does RTBF add, beyond the rights that currently exist?

Comment by Renato Opice Blum on December 24, 2013 at 10:07am Lara, thanks for your comments! Damage caused by new information technologies has been accumulating today. The right to oblivion has its historical origin in the field of criminal convictions. Emerges as an important part of the law of the former inmate rehabilitation. Not assign to anyone the right to delete or rewrite the facts own history, but only ensures the possibility to discuss the use and given that the past tense facts, specifically the mode and purpose that are remembered.